Week 4 Lecture Notes
Covers merits review, tribunal processes (AAT, ART, QCAT), and the role of Ombudsman in administrative law. Focuses on decision-making reviews, standing, procedural fairness, and oversight of government actions in a civil law context.
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Lecture Notes
Merits Review Revision
* Merits review involves:
° Questions of fact — concerns available evidence on which findings of fact can be made
° Questions of discretion — concerns the choices available to the decision maker
o Questions of law — concerns definitional and interpretive issues
* Correct or preferable decision on material before tribunal ( Drake v MIEA ):
° Correct — questions of law (that the decision was made according to law)
° Preferable — questions of discretion (if there is a range of decisions that are correct in
law, the decision should be the best that could have been made on the relevant facts
* Material before tribunal — questions of fact (fresh evidence and inferences from
evidence, not bound to only consider things the original decision maker considered)
Correct or Preferable Decision
* Discretionary arguments to be made in merits review:
° Example of merits review remaking a decision on discretionary arguments — Star
Broadcasting Network Pty Ltd v Australian Broadcasting Authority (2003) AATA 1348
° AAT removed the conditions imposed by ABA on the broadcaster because the
conditions were onerous and the aims attempted to be achieved by the ABA by
limiting the broadcast reach of Star Broadcasting could have been achieved through
technical means rather than broader and onerous conditions that were imposed on
the license
° AAT didn't say ABA conditions were illegal, just that it was not the " preferable "
decision
ART Introduction
1 The AAT was established in 1976.
■ The ART was established in 2024.
• Commonwealth body.
• The core aims of the AAT include:
Merits Review Revision
* Merits review involves:
° Questions of fact — concerns available evidence on which findings of fact can be made
° Questions of discretion — concerns the choices available to the decision maker
o Questions of law — concerns definitional and interpretive issues
* Correct or preferable decision on material before tribunal ( Drake v MIEA ):
° Correct — questions of law (that the decision was made according to law)
° Preferable — questions of discretion (if there is a range of decisions that are correct in
law, the decision should be the best that could have been made on the relevant facts
* Material before tribunal — questions of fact (fresh evidence and inferences from
evidence, not bound to only consider things the original decision maker considered)
Correct or Preferable Decision
* Discretionary arguments to be made in merits review:
° Example of merits review remaking a decision on discretionary arguments — Star
Broadcasting Network Pty Ltd v Australian Broadcasting Authority (2003) AATA 1348
° AAT removed the conditions imposed by ABA on the broadcaster because the
conditions were onerous and the aims attempted to be achieved by the ABA by
limiting the broadcast reach of Star Broadcasting could have been achieved through
technical means rather than broader and onerous conditions that were imposed on
the license
° AAT didn't say ABA conditions were illegal, just that it was not the " preferable "
decision
ART Introduction
1 The AAT was established in 1976.
■ The ART was established in 2024.
• Commonwealth body.
• The core aims of the AAT include:
« Combine all the specialist external review agencies that existed at the time into one
single tribunal with a common structure
o Ensure universal coverage with most Cth decision-making falling under AAT
jurisdiction
Q Provide quick, cheap, and effective review
• Critics suggest the AAT became dominated by lawyers and became very formal with
adversarial court-like hearings.
• In July 2015, the AAT absorbed specialist-external merits review agencies (SSAT, RRT)
which became divisions of the AAT.
• One of the most significant structural reforms introduced when the ART commenced
operation is the abolition of the old divisional structure of the AAT and instead the
establishment of 8 " jurisdictional areas " (si 96(1)).
« This will allow the President to flexibly allocate members across jurisdictional areas
depending on the operational requirements of the tribunal.
° It is hoped this will break down some of the " silos " that had developed in the AAT and
promote a uniform approach to merits review across the country.
• The AAT has registries in each capital city.
• Appointments of personnel to the tribunal are made by the Governor-General on the
advice of the Attorney General.
■ The ART must be headed by a Federal Court judge (President) (s205(3)). The term of
appointment is 5 years (s205(4)).
‘ Other categories of appointment to the ART:
° Judicial Deputy Presidents — must be a judge of the Federal Court/Circuit
Court/Family Court (s206(3)). The term of appointments is 5 years (s206(4)).
q Non-Judicial Deputy Presidents — must be a legal practitioner for at least 10 years and
either a former judge or have substantial expertise in a jurisdictional area (s207(3)).
Term of appointment is 5 years (s207(4)).
q Senior Member — must be a legal practitioner or have specialised training or
experience in jurisdictional area for 7 years (s208(3)). Term of 5 years (s208(5)).
* General Member — must be a legal practitioner or have specialised training or
experience in jurisdictional area for 5 years (s208(4)). Term of 5 years (s208(5)).
ART Primary Acts
The ART has no general conferral of power to hear appeals and conduct merits review.
Instead, s!2 and s13 makes it clear that " an enactment " may provide for review at the ART.
single tribunal with a common structure
o Ensure universal coverage with most Cth decision-making falling under AAT
jurisdiction
Q Provide quick, cheap, and effective review
• Critics suggest the AAT became dominated by lawyers and became very formal with
adversarial court-like hearings.
• In July 2015, the AAT absorbed specialist-external merits review agencies (SSAT, RRT)
which became divisions of the AAT.
• One of the most significant structural reforms introduced when the ART commenced
operation is the abolition of the old divisional structure of the AAT and instead the
establishment of 8 " jurisdictional areas " (si 96(1)).
« This will allow the President to flexibly allocate members across jurisdictional areas
depending on the operational requirements of the tribunal.
° It is hoped this will break down some of the " silos " that had developed in the AAT and
promote a uniform approach to merits review across the country.
• The AAT has registries in each capital city.
• Appointments of personnel to the tribunal are made by the Governor-General on the
advice of the Attorney General.
■ The ART must be headed by a Federal Court judge (President) (s205(3)). The term of
appointment is 5 years (s205(4)).
‘ Other categories of appointment to the ART:
° Judicial Deputy Presidents — must be a judge of the Federal Court/Circuit
Court/Family Court (s206(3)). The term of appointments is 5 years (s206(4)).
q Non-Judicial Deputy Presidents — must be a legal practitioner for at least 10 years and
either a former judge or have substantial expertise in a jurisdictional area (s207(3)).
Term of appointment is 5 years (s207(4)).
q Senior Member — must be a legal practitioner or have specialised training or
experience in jurisdictional area for 7 years (s208(3)). Term of 5 years (s208(5)).
* General Member — must be a legal practitioner or have specialised training or
experience in jurisdictional area for 5 years (s208(4)). Term of 5 years (s208(5)).
ART Primary Acts
The ART has no general conferral of power to hear appeals and conduct merits review.
Instead, s!2 and s13 makes it clear that " an enactment " may provide for review at the ART.
* When dealing with the ART, the Act under which the decision was made and that allows
appeal to the ART is called the Primary or Empowering Act.
■ Primary Acts may change the powers of the ART, including adjusting who has standing for
an application and the procedure for the ART when dealing with appeals from the Primary
Act (si 3(2)).
* The trigger to go to the ART is a decision having been made.
■ In practice, you must be able to identify the particular section of the primary Act that
provides for the decision being able to be made.
* The ART Act provides some clarification of when there is a decision where the decision
maker is supposed to make a decision within a particular timeframe but has failed to do
so, then sl6 ensures that this can still be treated as a decision.
Powers of the ART
ART Act
Section 54
For the purposes of reviewing a rewwaMe decision, the Tribunal may
exercise a ;i the powers and discretions that are conferred on the decision-
maker by an Act or an instrument made under an Act.
Section 105
In relation to the reviewable decision, the Tribunal mu$i make a decision:
(a) affirming the reviewable decision: or
(b) varying ihe reviewable decision: or
(c) setting aside lhe reviewable decision and:
(ij making a decision In substitution for lhe reviewable decision; or
(t«) remitting the matter lo the decision-maker for reeonsrderaiion in
accordance with any orders or recommendations of the Tribunal.
• Therefore ART has full merits review powers provided it's not limited by the primary Act.
• This means that ART does determinative review (it replaces its decision for that of the
original decision maker).
° This differs from the Ombudsman offices which are not able to engage in
determinative review, they cannot substitute their own decision for that of the original
decision maker. They can only make recommendations for reform.
• This means that any judicial review appeals are from the ART's decisions, not the original
decision maker's decision.
appeal to the ART is called the Primary or Empowering Act.
■ Primary Acts may change the powers of the ART, including adjusting who has standing for
an application and the procedure for the ART when dealing with appeals from the Primary
Act (si 3(2)).
* The trigger to go to the ART is a decision having been made.
■ In practice, you must be able to identify the particular section of the primary Act that
provides for the decision being able to be made.
* The ART Act provides some clarification of when there is a decision where the decision
maker is supposed to make a decision within a particular timeframe but has failed to do
so, then sl6 ensures that this can still be treated as a decision.
Powers of the ART
ART Act
Section 54
For the purposes of reviewing a rewwaMe decision, the Tribunal may
exercise a ;i the powers and discretions that are conferred on the decision-
maker by an Act or an instrument made under an Act.
Section 105
In relation to the reviewable decision, the Tribunal mu$i make a decision:
(a) affirming the reviewable decision: or
(b) varying ihe reviewable decision: or
(c) setting aside lhe reviewable decision and:
(ij making a decision In substitution for lhe reviewable decision; or
(t«) remitting the matter lo the decision-maker for reeonsrderaiion in
accordance with any orders or recommendations of the Tribunal.
• Therefore ART has full merits review powers provided it's not limited by the primary Act.
• This means that ART does determinative review (it replaces its decision for that of the
original decision maker).
° This differs from the Ombudsman offices which are not able to engage in
determinative review, they cannot substitute their own decision for that of the original
decision maker. They can only make recommendations for reform.
• This means that any judicial review appeals are from the ART's decisions, not the original
decision maker's decision.
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